Citation Nr: 21032481 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-66 499 DATE: May 27, 2021 ORDER Entitlement to a 70 percent rating effective January 13, 2011, but no higher and no earlier, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 10 percent for essential tremors of the upper extremities is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD has manifested in occupational and social impairment in most areas with deficiencies in most areas without total occupational and social impairment. 2. Throughout the period on appeal, the Veteran's essential tremors of the upper extremities appear to be noticeable only at rest but not noticeable upon movement; therefore, the evidence of record indicates that the tremors do not manifest in symptoms more severe than "moderate." CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating effective January 13, 2011, but no higher and no earlier, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 10 percent for service-connected essential tremors of the upper extremities have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 26, 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran filed a claim for service connection for PTSD on January 13, 2011. The Veteran's PTSD was assigned an initial rating of 30 percent, effective January 13, 2011, in a June 29, 2016 rating decision. See Rating Decision (June 29, 2016). The Veteran filed a timely and valid Notice of Disagreement to this initial rating decision. See NOD (rec'd May 24, 2017). On the basis of subsequent VA psychiatric examinations, the Veteran's PTSD was awarded staged ratings of 50 percent effective November 7, 2017 until prior to January 19, 2018, and then 70 percent effective thereafter. See VA Exams (Nov. 7, 2017; Jan. 19, 2018); Rating Decisions (Nov. 27, 2017; Feb. 13, 2018). Meanwhile, the Veteran's claim for essential tremors was received on July 28, 2016. See VA Form 21-526EZ (rec'd July 28, 2016 ). While as of the March 2020 Board decision, this claim was noncompensable, the Veteran is now in receipt of an initial 10 percent rating for essential tremors of the upper extremities effective July 28, 2016. See Rating Decision ( Jan. 15, 2021 ). As the benefits sought on appeal have not been granted in full, they remain on appeal as recharacterized here. See AB v. Brown, 6 Vet. App. 35, 38-9 (1993). The Veteran's claims for PTSD and tremors of the upper extremities as are currently on appeal was previously before the Board on March 10, 2020. On that date, the Board denied the claims for any higher ratings than 30 percent prior to November 7, 2017, or than 50 percent thereafter until prior to January 19, 2018, or than 70 percent thereafter. The March 2020 Board decision granted a petition to reopen a claim for service connection for restless leg syndrome and granted service connection for sleep apnea. In addition, the March 2020 Board decision remanded the claim for service connection for restless leg syndrome, a higher rating for essential tremors of the upper extremities and a total disability rating based on individual unemployability (TDIU) prior to January 19, 2018. The Veteran subsequently appealed the March 2020 decision to the Court of Appeals for Veterans Claims (Court). The portion of the decision that denied a higher rating for PTSD was later vacated by a Joint Motion for Partial Remand (JMPR). See JMPR (Nov. 19, 2020). Additional evidence, to include VA treatment records dated through August 2020, were associated with the record after the issuance of the August 2018 supplemental statement of the case. The Veteran's representative waived initial agency of original jurisdiction (AOJ) consideration of this evidence in the March 2021 Informal Hearing Presentation. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such evidence and proceed to adjudication of this case. The Board additionally notes that the Veteran was issued a Supplemental Statement of the Case (SSOC) as to three issues: entitlement to a TDIU any earlier than January 19, 2018, an increased rating for essential tremors in the upper extremities, and for service connection for restless leg syndrome. See SSOC (Jan. 15, 2021). The Veteran filed a timely and valid opt-in to the Appeals Modernization Act, requesting review of two claims only under the new systemthe TDIU claim and the service connection claim for restless leg syndrome. See VA Form 10182 (rec'd Mar. 10, 2021). The Board concludes that the Veteran did not opt-in to the new system for essential tremors of the upper extremities; therefore, this claim is still in the Legacy system. Meanwhile, while a claim for a TDIU can sometimes be inferred as part and parcel of a claim for increased ratings, see Rice v. Shinseki, 22 Vet. App. 447 (2009), Rice is not applicable in this case because the Veteran specifically and validly opted into the AMA to adjudicate his claims for a TDIU and for service connection for restless legs syndrome. As a result of the above appellate history, the Board asserts jurisdiction over the Veteran's claim for increased ratings for PTSD and for essential tremors of the upper extremities only. Increased Ratings Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). 1. Entitlement to a 70 percent rating effective January 13, 2011, but no higher and no earlier, for PTSD is granted. 38 C.F.R. § 4.130 delineates a schedule of ratings for mental disorders other than eating disorders, based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"). The Veteran's claimed mental disorder (PTSD, Diagnostic Code 9411) is governed by the general rating formula within § 4.130. As per the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is warranted when the Veteran exhibits occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the Veteran exhibits total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas", i.e.: "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In short, the Court vacated the Board's findings from March 10, 2020 decision because when the Board denied the Veteran's claims for increased ratings on account of the evidence never indicating suicidal or homicidal ideations, see Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Board failed to sufficiently explain why ratings higher than 30 percent prior to November 7, 2017 and/or higher than 50 percent thereafter were not warranted. See JMPR (Nov. 19, 2020). As a preliminary matter, the Board notes that despite having never exhibited suicidal or homicidal ideations, the Veteran's PTSD was awarded a 70 percent rating effective January 19, 2018. Nevertheless, the Board notes that upon examination in November 2017, the Veteran appeared to endorse multiple deficiencies in occupational and social impairment beyond merely "reduced reliability and productivity." For instance, with respect to his PTSD's effects on his personal life, the Veteran stated that "I have to get out myself out of the house to avoid confrontation or mood swings, but my knee-jerk reaction is to do the opposite of whatever is suggested. So I work really hard to not let PTSD affect my children or grandchildren, and my wife is a dear for putting up with me. She is the one who deserves the medals. We have to sleep now in different bedrooms." As to the rest of his social life, he admitted "I don't have any friends. I'm very suspicious of everyone. I will do social things with my family when I'm in the mood, but I am not remotely interested in dealing with other people." The Veteran also indicated that his PTSD rendered him completely unable to work as of that date, saying that "I've either fixed or sold cars for over 53 years. That's all I know, but I can't do it anymore. If something doesn't go the way I like or think it's supposed to be in my head, I either destroy it or walk away from it." See VA Exam (Nov. 7, 2017), at Question No. 2A. See also id. at Question No. 2C ("I have a problem with people who do not agree with me. I've even asked customers to leave the showroom. I've escorted people out, asked them to leave."). The Board concludes that whereas the Veteran was previously awarded a 50 percent rating effective as of this examination, the evidence is at least evenly balanced to suggest that a 70 percent rating is warranted. Impairment to mood has been demonstrated as the Veteran consistently reported anxiety and irritability. Some impairment to family relations is demonstrated as the Veteran reported difficulties with his wife. In addition, some impairment to work was demonstrated as the Veteran reported that he is no longer able to work on cars. The Board interprets that a salesman escorting a customer to leave the premises over a disagreement is consistent with difficulty in adapting to stressful circumstances (including work), while "not [being] remotely interested in dealing with other people" represents an inability to establish and maintain effective relationshipsnot just difficulty therein. See 38 C.F.R. § 4.130. Impairment to judgment and insight were not demonstrated or found. School was not attempted during the appeal period. The Board therefore resolves all reasonable doubt in the Veteran's favor and finds that therefore an initial 70 percent rating is warranted since January 13, 2011. See, e.g.: VA Exam (June 16, 2016), at Question No. 3A ("My problem I have with the PTSD is that I have a lack of patience. I have a real hard time if people don't see things my way. I have a bad temper. I blow people off. I've had 12 jobs since I've been home because people don't see things my way. I move on, or I get asked to leave."); Court JMPR (Nov. 19, 2020), at Pages 4-5, quoting VA Form 21-4138 ( May 4, 2017 ), at Page 2. With respect to a rating in excess of 70 percent for PTSD at any time on appeal, the Board has carefully considered all evidence of record, but ultimately concludes that there is simply no evidence suggesting both total occupational and social impairment at any time. Total social impairment was not shown as the Veteran maintained a relationship with his wife, his children and his grandchildren. In November 2017, the Veteran reported that his PTSD symptoms resulted in a severe impact on his social life in that he had no friends and that he was only able to do social events with his family when he was in the mood. In January 2018, the Veteran reported that he had minimal social relationships and a couple of friends that with on an occasional basis. Such does not represent total social impairment. The Veteran has not alleged, and the record does not show, gross impairment in thought processes or communication, grossly in appropriate behavior, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, disorientation to time or place or memory loss for the names of close relatives, own occupation or own name. The Veteran denied auditory and visual hallucinations in June 2016, in November 2017 and in January 2019. The Veteran's thought processes and content were found to be intact in June 2016 and again in November 2017 while they were found to be linear and goal directed in January 2019. The Veteran's memory was consistently found to be intact. Additionally, none of the Veteran's PTSD symptoms are similar in severity, frequency, or duration as found necessary for the assignment of a 100 percent rating. The Board notes the arguments of the Veteran's representative in the March 2021 Informal Hearing Presentation that a remand was warranted to obtain a contemptuous VA examination and updated VA treatment records. Specifically, the Veteran's representative argues that the last VA examination was too old to provide an adequate evaluation for the Veteran's current symptomology. However, a remand for a new VA examination is only warranted due to worsening of the disability and not due to the length of time that has elapsed from the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, VA treatment records dated through August 2020 have been associated with the record, these treatment records reflect the Veteran's ongoing mental health treatment and these records were considered by the Board herein. As such, the record is sufficient to evaluate the severity of the Veteran's PTSD. Therefore, the Board finds that a remand is not necessary and would only serve to unnecessarily delay the matter. See, e.g., DeLisio v. Shinseki, 25 Vet. App. 45, 63 (2011); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). In assessing the severity of the disability under consideration, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether staged ratings under Hart, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As a result of all of the above, the Board concludes that there is no evidence of record suggesting that the Veteran's PTSD has ever manifested in total occupational and social impairment. To this extent, the Board grants the Veteran's claim for a 70 percent rating for PTSD since January 13, 2011, but no higher and no earlier. To the extent that any portion of the Veteran's claim remains, the Board must deny the claim for a rating in excess of 70 percent for PTSD at any time during the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a rating in excess of 10 percent for essential tremors of the upper extremities is denied. The Veteran's essential tremors are rated under Diagnostic Code 8103, which evaluates convulsive tics. Mild tics are rated at a noncompensable rating, moderate tics are rated at 10 percent disabling, and severe tics are rated 30 percent disabling. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Veteran and his representative appear to have made no particular argument as to why ratings in excess of 10 percent for essential tremors of the upper extremities are warranted. The Board has fully, carefully, and sympathetically reviewed all evidence of record as pertaining to his essential tremors of the upper extremities, including his medical records and VA examinations of record. In a January 2018 examination pertaining to peripheral neuropathy, the examiner of record memorialized the Veteran's following statements: "[u]sually at a relaxed state his tremors are worse. If doing things, he doesn't notice any tremors. He reports 'the tingling is almost always there, I just pretty much gotten used to it.'" See VA Exam (Jan. 19, 2018) (rec'd Aug. 13, 2020 ). Thereafter, on December 8, 2020 (in other words, shortly after the Court's JMPR), the Veteran underwent a subsequent examination to contemporaneously evaluate his tremors. See VA Exam ( Dec. 8, 2020 ). The Veteran once again stated that "[t]he bilateral hand tremor occurs at rest and stops when motion is initiated." See id. at Page 4, Question No. 2a. The disorder does not require continuous medication for control, see id. at Question No. 2b, does not manifest in muscle weakness, see id. at Question No. 3a, and does not manifest in any neurologic abnormalities, see id. at Question No. 4 et seq. However, the Veteran's tremors appear to have caused up to one week of lost time from employment in the previous 12 months, in that "[e]ssential hand tremors can make it difficult to complete tasks that require a moderate level of dexterity at times." See id. at Question No. 12. Simply stated, there is no competent or credible evidence of record to suggest that the Veteran's essential tremors have ever most nearly approximated severe findings, or else more severe than "moderate" as is currently rated, at any time on appeal. Additionally, the Board determines that the Veteran's essential tremors currently manifest in symptoms consistent with moderate impairment as the Veteran reported that the tremors were intermittent as they occurred at rest and stopped with motion, did not require continuous medication for control and did not manifest in any neurologic abnormalities. Objective examination was negative for muscle weakness, diminished or absent deep tendon reflexes or muscle atrophy. Therefore, at no time has the evidence of record supported a rating in excess of 10 percent, which would be warranted if severe findings were shown. The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in more favorable findings. In assessing the severity of the disability under consideration, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, supra; Grottveit v. Brown, supra. However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether staged ratings under Hart, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, supra. As such, the criteria for a rating in excess of 10 percent for the Veteran's essential tremors of the upper extremities have not been met, and therefore the Veteran's claim for an increased rating in excess of 10 percent at any time since July 28, 2016 is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.